| N.Y. App. Div. | Jul 1, 1896
The court has no power in this matter to set aside or confirm the report of the commissioners or to review their determination. It was so decided by the General Term of this department in the Matter of the Nassau Cable Company (36 Hun, 272) in an opinion written by Justice Pratt, now a member of this court, and concurred in by Justices Barnard and Dyicman, and this decision was ■approved and followed by the General Term of the first department in the Matter of East River Bridge Company (75 Hun, 119" court="N.Y. Sup. Ct." date_filed="1894-01-12" href="https://app.midpage.ai/document/in-re-east-river-bridge-co-5506044?utm_source=webapp" opinion_id="5506044">75 Hun, 119). The case of the Nassau Gable Company was precisely like the case now before us. The statute there under consideration authorized the General Term to appoint commissioners, who¡ were ■empowered,, after a hearing of all parties interested, to determine whether the railroad ought to be constructed and operated' and who were directed to make a report thereon to the General Term; 7 and their determination that such road ought to be constructed and oper■ated, confirmed by said court, shall be taken in lieu of the consent •of the property owners.” (Laws 1884, chap. 252, § 6.) ,
The commissioners reported adversely to the building of the road, whereupon the railroad company moved at the General Term io :send back the report to the commissioners. In reference to this motion the court said : “ There seems to be no occasion for action "by the court, except to confirm a favorable report or to refuse confirmation. It is made a condition precedent to a right to construct ;such railroad for the company, to either obtain the consent of the property owners or a favorable report of commissioners confirmed by the court. It is plain, therefore, that there is nothing before the court to be confirmed, as the report is not favorable.”
"We concur in this view of the law. The language of the present Constitution is as follows: “No law shall authorize the con-
The expense of paving the street is to be assessed upon the several lots of land benefited by the improvement, but the expense of setting the curb and making the gutters is to be assessed only upon lots fronting upon the street, in proportion to their respective frontages.
Our conclusion is that the judgment should be modified so as to provide that the plaintiff’s property is liable to be assessed for its proportionate part of one-third of the total expense thereof, to wit, for the sum of $791.53 and for the sum of $931.59 for the expense of gutters and curbs, amounting in all to $1,723.12, and as so modified the judgment should be affirmed, without costs of appeal.
All concurred, except Pratt, J., not voting.
Judgment modified as stated in the opinion, without costs.